Eilenfeldt v. United CUSD 304 Board of Education et al

Filing 41

ORDER entered by Judge Sara Darrow on March 25, 2015. Defendants' 32 Motion for Direction from the Court is MOOT, the 36 Motion to Dismiss is GRANTED IN PART and DENIED IN PART, the 37 Motion for Leave to File Memorandum in Excess of Page Limitation is GRANTED, and the 40 Motion to Supplement is DENIED. (SC, ilcd)

E-FILED

Wednesday, 25 March, 2015 04:04:58 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
PAMELA EILENFELDT, as next friend of
her minor child, J.M.,

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Plaintiff,
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v.
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UNITED C.U.S.D. #304 BOARD OF
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EDUCATION, a Political Subdivision of the )
State of Illinois; JEFF WHITSITT, an
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individual; KRISTEN NELSON, an
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individual; RYAN WESTART, an
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individual; LORI SCHROCK, an individual; )
DONNA WINBIGLER, an individual;
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DENNIS BROWN, an individual; and DOES )
I-XX, inclusive,
)
)
Defendants.
)

Case No. 4:12-cv-04029-SLD-JEH

ORDER
Plaintiff Pamela Eilenfeldt brings this action on behalf of her son J.M., claiming he was
continuously bullied and harassed when he was in the seventh and eighth grades at United Junior
High School in Monmouth, Illinois. Eilenfeldt alleges that Defendants enabled and, in some
instances, encouraged students to bully and harass J.M. Before the Court are several motions
filed by Defendants: a Motion for Direction from the Court in Regards to March 25, 2014 Order,
ECF No. 32, a Motion to Dismiss the Second Amended Complaint, ECF No. 36, a Motion For
Leave to File a Memorandum in Support Motion to Dismiss in Excess of the Page Limit, ECF
No. 37, and a Motion to Supplement Case Law in Support of Motion to Dismiss Second
Amended Complaint, ECF No. 40. For the following reasons, the motion for direction is

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MOOT, the motion to dismiss is GRANTED IN PART and DENIED IN PART, the motion
seeking leave to file extra pages is GRANTED, and the Motion to Supplement is DENIED.
BACKGROUND1
I.

Parties
Eilenfeldt brings this action on behalf of her minor child J.M. against various individuals

and entities associated with the United Community Unit School District #304 (“C.U.S.D.” or
“School District”). Eilenfeldt asserts that Defendants acted under color of law and makes her
claims against each individual Defendant in his or her individual capacity. Defendants’ identities
are as follows:
1. Defendant C.U.S.D. (the “School District”) is a political subdivision of the State of
Illinois and operates United Junior High School, a public educational institution located
in Monmouth, Illinois.
2. Defendant Jeff Whitsitt is the superintendent of schools for the School District.
3. Defendant Kristen Nelson is the principal of United Junior High School.
4. Defendants Ryan Westart, Lori Schrock, and Donna Winbigler are teachers at United
Junior High School.
5. Defendant Dennis Brown is a guidance counselor at United Junior High School.
6. The true names and capacities of Defendants Doe I-XX2 are unknown to Eilenfeldt.
Eilenfeldt is informed and thereon alleges that each Defendant designated as Doe is

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In a motion to dismiss, all well-pleaded allegations in the complaint are taken as true and viewed in the light most
favorable to the plaintiff. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012)
(citation omitted). Accordingly, the material set forth here is, unless otherwise noted, based on allegations in the
Second Amended Complaint, ECF No. 33.
2
Eilenfeldt references “Does I-XX” in the caption of her Amended Complaint, but at other points she refers to
“Does I-X.” Because the caption names Does I-XX, the Court will use that designation to refer to them.

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responsible in some manner for the events referred to in this action and proximately
caused J.M.’s injuries.
II.

Bullying and Harassment of J.M.
Various students at United Junior High School began bullying and harassing J.M. in

January 2011 when he was a seventh-grader. The bullying and harassment continued through
the end of that academic year and into the following academic year when J.M. was an eighth
grader. During this period, students bullied J.M. by, among other things, taunting, teasing,
pushing, punching, and kicking him. Except for one instance of bullying, School District
officials and United Junior High School administrators and teachers never investigated
complaints that J.M. had been bullied or punished a student for bullying J.M. To the contrary,
administrators and teachers facilitated ongoing bullying of J.M. by failing to stop the bullying,
actively encouraging bullying, and punishing J.M. for defending himself while being bullied.
The bullying began in January, 2011 when “T1.,” “P.,” and “D1.” (presumably other
students, though Eilenfeldt does not make this clear) repeatedly shoved J.M. in the hallways and
inappropriately touched him in the locker room. Eilenfeldt immediately reported this conduct to
three of J.M.’s teachers, Westart, Winbigler, and a Mr. Noonan.3 Despite the report, J.M.’s
teachers did not investigate the incidents or punish the students who were involved. When
responding to the complaints, Winbigler said that J.M. “brought some of this on himself.”
These initial incidents were just the beginning of the bullying. Students verbally taunted
J.M by calling him a rapist, pedophile, and child molester and suggesting that he was sexually
attracted to young boys. In addition to the verbal bullying, students produced pictures, graffiti
artwork, and videos depicting J.M. as a pedophile and child molester. Students also continued to
physically bully J.M. For instance, students kicked, punched, and pushed J.M. One student even
3

Noonan is not one of the Defendants.

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threatened to “shank” J.M. with a knife. While the student who threatened to “shank” J.M. was
suspended for two weeks, none of the other students who bullied J.M. were punished. Eilenfeldt
alleges that when J.M. tried to stand up for himself, J.M. was punished but the bullies were not.
Eilenfeldt continued to report instances of bullying to Principal Nelson and J.M.’s
teachers, but almost nothing resulted from these complaints. Instead, they usually blamed J.M.
for the bullying. For example, Winbigler said that J.M. “gives back about as much as he gets”
and that he just “needs to stay away from certain kids” and “learn how to make life easier for
himself.” In another example, Eilenfeldt complained to Principal Nelson that it was difficult for
J.M. to focus on learning because students had been calling him sexually perverted names,
repeatedly punching him in the head, and kicking him in the legs. Principal Nelson responded
that the bullying was J.M.’s fault and punished him by assigning him a seat on the school bus.
The bullying and harassment continued into the next school year when J.M. was in the
eighth grade. Eilenfeldt continued complaining to school administrators and teachers, but they
did not do anything to stop the bullying. Instead, their conduct facilitated more bullying. For
example, a Ms. Kopriva gave J.M. detention for telling two bullies that he was not a rapist after
those students had called him a rapist in her classroom.
Eventually, in October, 2011, Eilenfeldt spoke with Superintendant Whitsitt because
school administrators and teachers were not doing anything to prevent students from bullying
and harassing J.M. But Superintendant Whitsitt did not take any action to address Eilenfeldt’s
complaints. After speaking with Whitsitt, Eilenfeldt met with Principal Nelson and Guidance
Counselor Brown to discuss the ongoing bullying and harassment. One topic of discussion was
the school’s punishment of the student who threatened to stab J.M. with a knife. Eilenfeldt had
two concerns regarding this incident. First, Eilenfeldt was concerned because it was the only

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instance that the school had punished any student for bullying J.M. Second, the school only
punished the student by suspending him for two weeks instead of expelling him for one year and
reporting the incident to authorities, both of which are required under the student handbook.
Despite these meetings, Superintendant Whitsitt, Principal Nelson, and Guidance Couneslor
Brown took no action to address Eilenfeldt’s concerns.
The bullying and harassment continued after Eilenfeldt met with various school and
School District employees. Again, administrators and teachers refrained from punishing the
bullies. Instead, they punished J.M. even though he was the one being bullied. In one of
Westart’s classes, J.M. tried to defend himself from bullies. Following the altercation, Westart
asked the class whether J.M. should be punished by having to write out the preamble to the
United States Constitution twenty-five times, and the class agreed to impose the punishment. A
few days later, unidentified school administrators and teachers, with the knowledge that J.M. had
been recently bullied, commended unspecified eighth graders for being the “best group of kids.”
The bullying continued into December 2011, and January 2012. One student showed to
the rest of his classmates an image of a man standing next to a van and looking at children. This
student told his classmates that the man was J.M. and that J.M. was going to rape the children.
Students also continued to repeatedly shove J.M. in the hallways. One of the students that
pushed J.M. in the hallways also sang a song about how J.M. was going to rape him. When J.M.
reported this conduct to Schrock, she took no action. Instead, Schrock scolded J.M. for asking
the bully to sing the song to her and told him that it was his fault that the bully sang the song.
Later that day, Eilenfeldt complained about the incident to Principal Nelson, but she took no
action.

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One of J.M.’s doctors treated J.M. for school-avoidance anxiety disorder caused by
verbal and physical bullying and harassment at school. The doctor recommended that it was in
J.M.’s best interest not to return to school until the school addressed his safety and well-being.
Eilenfeldt, on behalf of J.M., makes various claims against the School District, Superintendent
Whitsitt, Principal Nelson, Guidance Counselor Brown, and teachers Westart, Schrock, and
Winbigler. These are discussed in more detail below.
III.

Procedural History
Plaintiff first filed suit on March 20, 2012, ECF No. 1. The Court granted Defendants’

Motion to Dismiss, ECF No. 11, and gave Plaintiff leave to refile, ECF No. 23. Plaintiff did so
on April 23, 2013, ECF No. 24. Another motion to dismiss followed, ECF No. 25, which the
Court granted in part and denied in part, ECF No. 31, giving Plaintiff leave once more to amend.
When an amended complaint was not forthcoming, Defendants filed their Motion for Direction
from the Court in Regards to March 25, 2014 Order, ECF No. 32, which asked to Court to
dismiss the Amended Complaint. On April 29, 2014, Plaintiff filed a second amended
complaint. Yet another motion to dismiss followed, ECF No. 36, and is now before the Court,
along with a memorandum of points and authorities styled, because of its length, a motion for
leave to file a memorandum in excess of the page limit, ECF No. 37. Defendants also filed a
motion with two cases attached, ECF No. 40, which they wished to bring to the Court’s attention.
DISCUSSION
I.

Motion to Dismiss Standard
A motion to dismiss under Rule 12(b)(6) does not resolve the merits of a particular claim.

Instead, it tests only the sufficiency of the allegations set forth in the complaint. To state a claim,
a complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a). A court will accept the factual allegations in the
complaint as true, but they must give “‘fair notice of what . . . the claim is and the grounds upon
which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions” and the
“[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id.
(citations omitted). In sum, the plaintiff’s allegations must demonstrate that the claim “is
plausible, rather than merely speculative.” Tomayo v. Blagojevich, 526 F.3d 1074, 1083 (7th
Cir. 2008).
In ruling on a defendant’s motion to dismiss under Rule 12(b)(6), the court must “accept
all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor
of the plaintiff.” Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). Facts in the
complaint that disprove the asserted claim should be considered, and the court need not accept
unsupported conclusions of law. N. Ind. Gun & Outdoor Shows v. City of South Bend, 163 F.3d
449, 452 (7th Cir. 1998) (quoting R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281
(7th Cir. 1989)); see also Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009) (citing Twombly, 550
U.S. 544 (2007)) (conclusory allegations are “not entitled to be assumed true”).
II.

Defendants’ Motion to Dismiss the Second Amended Complaint
Eilenfeldt’s Second Amended Complaint has shed many of its original causes of action,

and now contains only four: (I), a Title IX claim for sexual harassment and sexual
discrimination, Second Am. Compl. 10–12; (II), a § 1983 Monell claim alleging that the School
had a de facto policy that deprived J.M. of his rights to equal protection and substantive due

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process, id. at 12–13; (III), a § 1983 claim of substantive due process violations as to all schoolemployee defendants, id. at 13–14; and (IV), a § 1983 “class of one” claim of equal protection
violations as to all school-employee defendants, id. at 14–15. Defendants move to dismiss the
Second Amended Complaint on the grounds that Counts I, III, and IV fail to state a claim upon
which relief can be granted, and that Count II confusingly pleads more than one cause of action.
The Court will treat the arguments against each Count sequentially.
A.

Title IX Claims

Defendants argue that Plaintiff fails to state a claim under Title IX because she does not
allege discrimination on the basis of gender. Title IX states that “No person in the United States
shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). In certain circumstances, an individual who suffers studenton-student sexual harassment has a private right of action against the recipient of federal
funding. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999). To succeed on a Title
IX peer harassment claim, a plaintiff must show, among other things, that “the funding recipient
act[ed] with deliberate indifference to known acts of harassment in its programs or activities,”
and that the harassment was “so severe, pervasive, and objectively offensive that it effectively
bars the victim’s access to an educational opportunity or benefit.” Id. at 633. The harassment
must be ‘on the basis of sex,’ meaning the harassment was motivated by either the plaintiff’s
gender or failure to conform to gender norms. See Corral v. UNO Charter Sch. Network, Inc.,
No. 10-cv-03379, 2013 WL 1855824, at *5 (N.D. Ill. May 1, 2013) (“[H]arassment based solely
upon a person’s sexual preference or orientation (and not on one’s sex or conformity to gender
norms) is not a basis for a sex discrimination claim.”); Ulane v. E. Airlines, Inc., 742 F.2d 1081,

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1086 (7th Cir. 1984) (“Members of Congress have, moreover, on a number of occasions,
attempted to amend Title VII to prohibit discrimination based upon ‘affectational or sexual
orientation.’ Each of these attempts has failed.”); Price Waterhouse v. Hopkins, 490 U.S. 228,
251 (1989) (holding discrimination on the basis of sex and gender violative of Title VII).
The Court previously dismissed Plaintiff’s Title IX claim with leave to refile, explaining
that Eilenfeldt had not alleged any harassment against J.M. “because of his male gender or his
failure to conform to male gender norms.” Mar. 25, 2014 Order 10 (original emphasis). The
Court observed that while other children were alleged to have called J.M. a rapist, pedophile, and
child molester, and stated that he was attracted to young boys, this behavior merely related to
“deviant sexual conduct,” and was not focused on his male gender. Id. Although Plaintiff has
re-alleged her Title IX claim, Defendants argue that she has added nothing to her original
allegations but a conclusory statement that J.M. was discriminated against because he “did not
conform to gender norms,” Second Am. Compl. ¶ 50.
Plaintiff has indeed not modified her First Amended Complaint beyond the statement that
those who bullied J.M. did so because they believed he did not conform to gender norms. The
bullying J.M. allegedly suffered took the form of the repeated, cruel suggestion that J.M had
sexual urges of which he ought to be ashamed, and for which he ought to be punished. As
reprehensible as such taunting may have been, it took the form of an absurd and baseless
accusation meant to wound. It did not, at least on the allegations before the Court today, begin
with some observable feature of J.M.’s gender or gendered behavior. J.M. was not harassed for
being male, or being insufficiently male; indeed, it is unclear from the pleadings why he was
harassed. As tragic as the alleged abuse might be, the fact that it apparently arose from nothing
more nor less than schoolyard cruelty and near-arbitrary animosity takes it well outside the realm

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of Title IX gender discrimination. Courts have repeatedly held that forms of abuse utilizing
gendered or sexual language do not, by their use of such language alone, constitute
discrimination on the basis of gender. See Burwell v. Pekin Cmty. High Sch. Dist. 303, 213 F.
Supp. 2d 917, 931 (C.D. Ill. 2002) (“the use of terms such as ‘bitch,’ ‘whore’ and ‘slut’ at school
are not necessarily based upon gender bias but may be based on personal animosity unrelated to
gender”); Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996)
(abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002))
(“‘sick bitch’—and, we add, the other verbal abuse, and [an] obscene gesture . . . was, in context,
not a sex- or gender-related term”).
The Court previously found Plaintiff’s allegations insufficient to support her Title IX
claim. It again finds the allegations insufficient, and now dismisses Count I, Plaintiff’s Title IX
claim, because she has failed to state a claim upon which relief could be granted.
B.

§ 1983 Monell Claims

To state a claim under § 1983, a plaintiff must allege that (1) some individual deprived
her of a federally protected right; and (2) the individual who deprived her of that right acted
under color of state law. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 459 (7th Cir. 2007)
(per curiam).
However, a plaintiff may also sue a municipality or municipal entity under § 1983 “for
constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom
has not received formal approval through the body’s official decisionmaking channels.” Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). To hold a municipal or county entity liable
under § 1983 for an official custom or policy, a plaintiff must allege that: (1) the municipality
“had an express policy that, when enforced, causes a constitutional deprivation;” (2) the

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municipality “had a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or usage within the
force of law;” or (3) his “constitutional injury was caused by a person with final policymaking
authority.” McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000).
The School District argues that Plaintiff pleads two separate theories of Monell liability
under a single Count—a due process claim and an equal protection claim. Mem. Supp. Mot.
Dismiss 2nd Am. Compl. 7. The School District points to the Court’s Order granting leave to
amend the Complaint a second time, in which the Court warned Plaintiff against grouping
together multiple causes of action in individual counts because such confusing aggregation
violated Federal Rules of Civil Procedure 8(a) and 10(b). Mar. 25, 2014 Order 8–9. In that
Order, the Court noted that “[l]imiting each cause of action to a single claim would greatly
improve clarity,” and warned Plaintiff that repeated failure to cure deficiencies in a complaint
might result in dismissal with prejudice. Id. at 8.
The Court’s earlier without-prejudice dismissal of Plaintiff’s Monell claim, however, was
premised not on how confusing the claim was, but on Plaintiff’s impermissible request for
punitive damages against the School. Mar. 25, 2014 Order at 12. Plaintiff has now cured that
deficiency, seeking compensatory damages. 2nd Am. Compl. ¶ 61. While the Court found that
some of the aggregated causes of action in the First Amended Complaint were confusing, the
finding was with specific reference to Counts lodged against “all defendants,” because these
Counts made it “difficult for Defendants and the Court to determine which allegations against
which Defendants are the basis for certain causes of action.” Id. at 9. By contrast, in ruling on
Plaintiff’s Monell claim, lodged against only the School, the Court found that “Eilenfeldt has

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pleaded sufficient facts to allow Defendants, and the Court, to understand the gravamen of her
complaint.” Id. at 12.
It would indeed have promoted clarity to separate the equal protection and due process
causes of action from each other, as the Court repeatedly suggested Plaintiff might wish to do.
However, doing so in this instance would not have promoted clarity much. Plaintiff alleges that
the School District violated both J.M.’s due process and equal protection rights. 2nd Am.
Compl. ¶ 60. Separating these two causes of action into two claims would not provide the
School District with any more information about the claims against it than it currently possess.
Defendant argues that “[e]ach claim requires a separate set of facts to be set forth.” Mem. Supp.
Mot. Dismiss 2nd Am. Compl. 7. However, allegations in support of each claim are made both
in Count II and the Counts that follow. Recall that a Monell violation requires not just a policy
or practice, but an actual violation of a plaintiff’s civil rights under § 1983. Almost invariably,
the rights violations alleged in the Monell violation are those also alleged against particular
agents of the municipal entity in question, who are also being sued in their individual capacity.
See Medina v. City of Chicago, 100 F. Supp. 2d 893, 894–96 (N.D. Ill. 2000) (explaining that
Monell claims tend to rise and fall with the personal liability claims lodged against state
officers). That is true in the instant case.
However, Count II’s close association with the equal protection allegations listed in
Count IV also proves to be the downfall of the equal protection side of the Monell claim. For if,
as explained above, the due process and equal protection Monell claims rest entirely upon the
Fourteenth Amendment violations alleged as to specific actors, then if no claim has been made
out that those actors violated Plaintiff’s civil rights, the Monell claim as to the school must fail
too. And in this case, as explained in Section D, infra, Plaintiff cannot sustain her equal

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protection claims. Thus, only one Monell claim of the two originally embedded in the second
Count remains—the due process allegation. Thus too, with only one claim remaining, any
uncertainty about the content of the claims in Count II that Defendants may have had is
remedied.
Count II is dismissed insofar as it is a claim for relief under the equal protection clause of
the Fourteenth Amendment. The motion is denied, and the Count remains, insofar as it is a claim
for relief against the School under the due process clause of the Fourteenth Amendment.
C.

§ 1983 Substantive Due Process Claims

Defendants argue that Plaintiff’s due process claims as to all employee-defendants fail
because failures to act are not actionable under the due process clause, and none of the behavior
alleged shocks the conscience. “No State shall . . . deprive any person of life, liberty, or
property, without due process of law,” U.S. Const., Amdt. 14, § 1. A state action taken by the
executive branch violates due process only when it “‘can properly be characterized as arbitrary,
or conscience shocking, in a constitutional sense.’” Cnty. of Sacramento v. Lewis, 523 U.S. 833,
847 (1998) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992)).
Although the “shocks the conscience” standard “lacks precise measurement,” it “points toward
‘the tort law’s spectrum of liability.’” King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d
812, 818-19 (7th Cir. 2007) (quoting Cnty. of Sacramento, 523 U.S. at 847–48 ). “Only conduct
falling toward the more culpable end of the spectrum shall be found to shock the conscience.”
King, 496 F.3d at 819.
Normally, only government action may violate a person’s due process rights, because the
government has no duty to act affirmatively to protect people from the actions of third parties.
See Sandage v. Bd. of Comm’rs of Vanderburgh Cnty., 548 F.3d 595, 596 (7th Cir. 2008)

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(“There is no federal constitutional right to be protected by the government against private
violence in which the government is not complicit.”). However, under certain very limited
circumstances, the state may nevertheless be held liable for a failure to protect. The state may
owe a duty to protect someone with whom it has a “special relationship” by virtue of having
placed that person in custody; it may also owe such a duty to someone whom the state itself has
placed in danger. Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998). The so-called “state
created danger doctrine” requires:
First, in order for the Due Process Clause to impose upon a state the duty to
protect its citizens, the state, by its affirmative acts, must create or increase a
danger faced by an individual . . . . Second, the failure on the part of the state to
protect an individual from such a danger must be the proximate cause of the
injury to the individual . . . Third, because the right to protection against statecreated dangers is derived from the substantive component of the Due Process
Clause, the state’s failure to protect the individual must shock the conscience.
King, 496 F.3d at 817–18 (citations omitted). The Seventh Circuit has sometimes disapproved
the distinction between cases involving state action and inaction coupled with a duty to protect,
reasoning that “in both classes of case the victim is safe before the state intervenes and unsafe
afterward.” Sandage, 548 F.3d 595. In other words, even what looks like culpable state inaction
in the face of a duty to protect can be viewed as merely the result of an affirmative state action
that placed someone in a vulnerable position. But regardless of whether the state has
affirmatively acted, or merely created a danger, a state actor must have behaved in a way that
shocks the conscience for a due process violation to occur.4
Defendants lodge two objections to Plaintiff’s substantive due process claim. One is that
a failure to act is “not actionable” under substantive due process. Mem. Supp. Mot. Dismiss 2nd

4

This is arguably not the case in “special relationship” situations. However, a special relationship is only created
when “the State takes a person into its custody and holds him there against his will.” DeShaney v. Winnebago Cnty.
Dep't of Soc. Servs., 489 U.S. 189, 199–200 (1989). As Plaintiff acknowledges, she is not proceeding on a special
relationship theory for her due process claim. Resp. Mot. Dismiss Second Am. Compl. 7.

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Am. Compl. 11. This is false. A government failure to act is “actionable” if a special
relationship has been created between government and victim, or if the state created the danger
that now threatens the victim. Monfils, 165 F.3d at 516. Viewed differently, an original state
action (creating a danger, placing someone in a position of diminished ability to care for himself)
then creates a threat to a victim, in light of which the state’s failure to act is constitutionally
deficient. Sandage, 548 F.3d 595. Thus, Defendants’ numerous observations that, at times, they
seem to have allegedly misbehaved only by inaction do not, in themselves, supply any reason to
dismiss the claim. See Mem. Supp. Mot. Dismiss 2nd Am. Compl. 13–17.
Defendants’ second objection is that none of the conduct alleged “shocks the
conscience,” as it must for a substantive due process violation by the executive branch, whether
by state action or state created danger. Id. at 9. However, as the Court observed in its previous
Order, whether certain conduct shocks the conscience is “a necessarily fact-bound inquiry,” and
not appropriately decided, on these facts, at the motion-to-dismiss stage. Mar. 25, 2014 Order at
13 (citing King, 496 F.3d at 818). Defendants argue with respect to each individual defendant,
that none of their actions shocks the conscience. Mem. Supp. Mot. Dismiss 2nd Am. Compl.
13–17. Courts may not, however, dismiss § 1983 claims under Federal Rule of Civil Procedure
12(b)(6) merely “for lack of factual specificity”; plaintiffs “need not allege all, or any of the facts
logically entailed by the claim . . . A plaintiff does not have to plead evidence.” McCormick, 230
F.3d at 325 (internal quotation marks omitted). Rather, his “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The factual
allegations in Plaintiff’s Complaint do so, and the Court will not evaluate them as if they were
evidence, or treat this motion on the pleadings as if it were a motion for summary judgment.
Plaintiff has alleged sufficient plausible facts for the Court to infer that the alleged offense could

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have been committed, and in particular, that Defendants’ actions could have been conscienceshocking. Defendants’ motion to dismiss as to Plaintiff’s substantive due process claims, Count
III, is denied.
D.

§ 1983 Equal Protection Claims

Defendants argue that Plaintiff’s equal protection claims as to all employee-defendants
fail because Plaintiff does not allege that the defendants acted without a rational basis. Mem.
Supp. Mot. Dismiss 2nd Am. Compl. 19. The Fourteenth Amendment’s Equal Protection Clause
is typically “understood as protecting members of vulnerable groups from unequal treatment
attributable to the state,” but the clause “also proscribes state action that irrationally singles out
and targets an individual for discriminatory treatment as a so-called ‘class-of-one.’” LaBella
Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 941 (7th Cir. 2010) (quoting Reget v. City of
La Crosse, 595 F.3d 691, 695 (7th Cir. 2010)). The elements of a class-of-one claim—and what
a plaintiff must plead in the complaint to state such a claim—are not fully settled in this Circuit.
See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc) (5-5 division
resulting in no controlling opinion), cert. denied, 133 S. Ct. 654 (2012). “[A]t a minimum,” the
claim “would require proof that the defendants intentionally treated [a plaintiff] differently from
others situated similarly to [him or] her for no rational reason,” Williamson v. Curran, 714 F.3d
432, 449 (7th Cir. 2013) (citing Thayer v. Chiczewski, 705 F.3d 237, 254 (7th Cir. 2012)), and it
is unclear whether plaintiffs must also show improper motive, or “illegitimate animus,” to
successfully prove the claim, see Thayer, 705 F.3d at 254.
In any event, it is clear that the bar for a class-of-one equal protection claim is high. If
there is a “conceivable rational basis for the difference in treatment” suffered by the class
member, then the claim fails. D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013)

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(cert. denied, 134 S. Ct. 1308 (2014)) (original emphasis); see Heller v. Doe by Doe, 509 U.S.
312, 320 (1993) (explaining that, under rational basis review in an equal protection challenge, “a
classification ‘must be upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.’”) (quoting
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). The burden lies with the plaintiff to
“overcome the presumption of rationality attached to government action.” Flying J Inc. v. City
of New Haven, 549 F.3d 538, 545 (7th Cir. 2008). It is for this reason that animus, improper
motive, and other factors that cast doubt on a possible rational basis are frequently pleaded. See
Del Marcelle, 680 F.3d at 913 (Wood, J., dissenting) (“[these factors are] illustrative of the kind
of facts on which a plaintiff might rely in a complaint to show that the lack of a rational basis is
not merely possible, but plausible”).
In this case, there are conceivable rational bases for the actions of each individual
defendant described in the Second Amended Complaint. In each case, Plaintiff does nothing to
diminish the plausibility of these bases. The defendants are treated sequentially below, and the
facts taken from the allegations in the complaint, read in the light most favorable to the Plaintiff.
Ryan Westart, a teacher, took no action upon being informed by Plaintiff that J.M. had
been assaulted by bullies, Second Am. Compl. ¶ 21, and asked his class whether J.M. should be
punished by writing out the preamble of the U.S. Constitution 25 times for attempting to defend
himself from bullies, id. at ¶ 34. Westart then made J.M. sit in a desk adjoining his own, away
from the other students. Id. Plaintiff argues that “[t]he decisions of Westart to retaliate against
J.M. and to single him out from the rest of the class and bully J.M. as a result of J.M. reporting
the harassment and bullying conduct by his classmates against him cannot be rationally related to
any legitimate government interest.” Resp. Mot. Dismiss 2nd Am. Compl.13, ECF No. 39.

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However, Plaintiff pleads no facts beyond those listed above to suggest that Westart might have
lacked a rational basis. As Defendants observe with respect to each one of the employeedefendants, Westart may well have had a legitimate pedagogical reason for not taking action
against the bullies, or punishing J.M. by making him write the constitution and sit in a separate
desk. Without more facts alleged, Plaintiff’s characterization of that behavior as, itself,
“bullying” is spurious, and fails to overcome the presumption of rationality that applies to state
action.
Donna Winbigler, a teacher, took no action when the bullying of J.M. was reported to
her, ¶ 21, and told J.M.’s mother that J.M. “runs his mouth” and “gives back about as much as he
gets,” ¶ 24. Plaintiff describes these alleged acts as constituting retaliation and bullying. Resp.
Mot. Dismiss 2nd Am. Compl.12. However, this is an inaccurate characterization of the acts and
omissions attributed to Winbigler by the Second Amended Complaint. All Winbigler is alleged
to have done was decline to punish the bullies after being told of their activities and report on
J.M.’s behavior to Plaintiff. Decisions about whether or not to impose discipline on students,
taken by an individual teacher, are surely within that teacher’s pedagogical discretion. And, as
Defendants observe, the two quoted statements made in a conversation with Plaintiff about
J.M.’s behavior are not suggestive or constitutive of an irrational basis for singling J.M. out—as,
indeed, they are not suggestive or constitutive of singling out J.M. at all. Plaintiff has not
overcome the presumption of rationality as to Winbigler’s actions.
Lori Schrock,5 a teacher, took no punitive action when told that a student had made up a
song about J.M. raping him, told J.M. she was sure it was not inappropriate, and scolded J.M. for
asking the student to sing it to her. Second Am. Compl. ¶ 38. Plaintiff describes this behavior as
5

Schrock’s name is spelled “Schrock” in the caption to the Second Amended Complaint, “Shrock” in Defendant’s
Motion to Dismiss the Second Amended Complaint, and “Schrok” in Plaintiff’s Motion in Opposition. The Court
uses the caption’s version here.

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having no rational basis entirely, it appears, because of Plaintiff’s own description of that
behavior as inexplicable. On the contrary, one can imagine several legitimate explanations
relating to pedagogy and student discipline for why Schrock might have scolded J.M. and not
punished the bully. Plaintiff has not overcome the presumption of rationality as to Schrock’s
actions.
Dennis Brown, a guidance counselor, and Jeff Whitsitt, the Superintendent of Schools,
failed to address some of Plaintiff’s complaints upon meeting with her in October 2011. Second
Am. Compl. ¶¶ 30, 31. However, Brown and Whitsitt could have had many legitimate reasons
for their perceived failure to address Plaintiff’s complaints. They might have preferred to allow
teachers to address disciplinary issues at the classroom level; they might have reasonably
construed Plaintiff’s concerns to be excessive. One might multiply examples, and Plaintiff
suggests no reason why not. Plaintiff has not overcome the presumption of rationality as to
Brown or Whitsitt.
Kristen Nelson, school principal, was informed that J.M. had been punched by another
student, id. ¶ 25, and assigned J.M. a seat on the school bus in response, saying that it was his
fault, ¶ 27. Nelson, like Brown and Whitsitt, was at the October 2011 meeting after which no
action was taken. Id. ¶¶ 30, 31. Nelson received a letter from Plaintiff on December 5, 2011,
detailing the bullying, and one student’s threat to stab J.M, id. ¶¶ 32, 33.6 In response, Nelson
said that the school might have an assembly to address bullying, id. ¶ 34. Nelson later
congratulated the eighth grade as a class for being the “best group of kids.” Id. ¶ 35. Nelson was
informed on January 17, 2012, of a bullying incident where students had shown a picture on a
computer to other students, saying that it depicted J.M. about to rape children. Id. ¶ 36. Nelson
6

The Second Amended Complaint does concede, ¶ 30, that certain students were disciplined—allegedly
insufficiently—for bringing knives to school.

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was also informed that on January 19, 2012, J.M. had been shoved by bullies in the hallway. Id.
¶ 37. She took no action in response to either event. When told that a student had sung a
derogatory song about J.M., Nelson took no action but said: “we are working hard to keep J.M.
from hurting J.M.” Id. ¶ 38. While in their aggregate, these are more troubling than the
allegations lodged against the other teachers, the Court finds that they do not plausibly preclude a
“conceivable rational basis for the difference in treatment” J.M. may have experienced. Kopp,
725 F.3d at 686 (original emphasis). In particular, the Court notes that Plaintiff’s repeated
claims that Nelson never took any action are contradicted by her statement that staff were
“working hard to keep J.M. from hurting J.M.” However one interprets this statement, it
suggests that Nelson was acting in the way that she did with a pedagogical or disciplinary aim in
view. Whether or not those actions were shocking to the conscience is a question to be
determined under Plaintiff’s due process claim. But Plaintiff’s complaint does not make a
showing that Nelson had no rational basis for her actions.
Plaintiff’s equal protection claim fails, as to all employee-defendants, to show that there
was no “conceivable rational basis for the difference in treatment” suffered by J.M. Kopp, 725
F.3d at 686. Defendants’ motion to dismiss is granted as to Plaintiff’s equal protection claims,
Count IV.
CONCLUSION
Accordingly, Defendants’ Motion for Direction from the Court, ECF No. 32, is MOOT,
the Motion to Dismiss, ECF No. 36, is GRANTED IN PART and DENIED IN PART, the
Motion for Leave to File Memorandum in Excess of Page Limitation is GRANTED, and the
Motion to Supplement is DENIED.

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Entered this 25th day of March, 2015.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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